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2014 DIGILAW 181 (CAL)

Ravi Shankar Mangipudy v. Somesh Banik

2014-03-05

ASHIM KUMAR ROY

body2014
JUDGMENT : Ashim Kumar Roy, J. The petitioner has been facing his prosecution along with others in three different criminal cases relating to the offence punishable under Sections 138/141 of the Negotiable Instruments Act all are pending before the learned 8th Metropolitan Magistrate, Calcutta being the case no. C/18860/2007, C/18861/2007, C/18862/2007. 2. Now, in the aforesaid criminal revisional applications, the petitioner has approached this court for quashing of those criminal cases on the ground much prior to the issuance of the cheque, he resigned from the post of Director of the accused company. 3. Since parties are same and the grounds on which quashing has been sought for are identical, all the aforesaid three criminal revisions are taken up for hearing together and disposed of by this common order. 4. In this regard, this court called for a report from the Registrar of Companies, West Bengal to ascertain whether on the date of issuance of the cheque whether petitioner was a director in the company or not. The report has been submitted and is lying with the records of this case. It appears therefrom that the petitioner filed Form-32 with prescribed filing fees vide service request No. A 07971922 dated December 28, 2006 and the same was taken on record by the Registrar of Companies at his office on 11th of January, 2007. 5. While the cheques in question were issued on March 22, 2007, the petitioner resigned from the post of director with effect from December 28, 2006 and the same was taken on record at the office of the Registrar of Companies on 11th of January, 2007. Therefore on the date of issuance of the cheque petitioner was no more director of the accused company and he could not be prosecuted for the offence committed by the company on the allegation of vicarious liability. 6. In the case of Anita Malhotra v. Apparel Export Promotion Council & Anr. reported in (2012) 1 SCC 520 , the Apex Court in similar circumstances relying on the Form 32 and having found that much before the issuance of the cheque, the accused resigned from the post of Director quashed the proceeding against her. Apart from that I also find in this case, the only allegation made against the petitioner in the petition of complaint and contained in Paragraphs nos. Apart from that I also find in this case, the only allegation made against the petitioner in the petition of complaint and contained in Paragraphs nos. 11 and 12 thereof that he being the director of the company was responsible for carrying on the day-to-day business of the accused company, the principal accused and accordingly, liable to be prosecuted under section 138 of the N.I. Act with the aid of section 141 of the said Act. However, according to the ratio of the decision of the Hon'ble Apex Court, in the case of SMS Pharmaceuticals v. Neeta Bhalla & Anr reported in (2005) 8 SCC 89 and National Small Industries Corporation Ltd. v. Harmeet Singh Paintal & Anr (2010) 3 SCC 330 (Civil) 677, such type of allegations are not sufficient for prosecuting a director under section 138 of the N.I. Act with the aid of 141 of the said Act. 7. For the reasons stated above, all the aforesaid proceedings are not at all tenable in law and bring out a situation, which is completely an abuse of process of court, accordingly the same so far as the petitioner is concerned stands quashed. 8. Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocate of the parties, if applied for, as early as possible.